Detailed Analysis Of Premium Processing For I-140s

Many are awaiting the start of the premium processing option for I-140 immigrant
petitions for foreign national workers, which is NOT yet available.
According to all indications from USCIS, however, it should be announced
soon. In anticipation, we are evaluating the possible benefits of using
premium processing for I-140 petitions. This aticle addresses
matters relating to filing H1B extensions and issues relating to the "green
card," or permanent residency processing. Premium Processing DefinedFor an additional fee of $1000, the USCIS
will process the designated form within 15 calendar days of receipt. This is
called Premium Processing. While a decision will not necessarily be issued in 15
days, a USCIS officer will review the application and determine the
appropriate action. In many instances, this action could be an
approval. The officer could issue any of the following, however: a request
for further evidence (RFE), a denial, a Notice of Intent to Deny (NOID), or
a notice of fraud investigation. If the notice requires an applicant to
respond with additional evidence and/or legal argument, the USCIS is
supposed to make a final decision within 15 days of receipt of the response.Eligibility for I-140 Premium ProcessingOnce premium processing is initiated, this service will be available
for the following employment-based immigrant visa classifications:

EB2 Professionals
with Advanced Degrees or Exceptional Ability who are NOT seeking a
National Interest Waiver

EB3 Professionals
and Skilled Workers

Note that I-140 premium processing will NOT be available for National
Interest Waiver (NIW) petitions. NIW petitions are complicated and require
significant time for detailed review. Although many Extraordinary Ability
(EA) and Outstanding Professor / Researcher (OPR) cases are similarly
complex, they will be eligible for premium processing. Analysis : Pros and Cons of Premium Processing
and H1B Extensions
Premium processing means one will receive an I-140 decision in an expedited
fashion. This is beneficial to those who want to take advantage of AC21
portability or some of those who need extended time in H1B status. One-Year
ExtensionsGenerally, H1B status is
granted for up to six years. If an H1B worker has had a labor certification
(LC) or an I-140 filed 365 days prior to the expiration of the six years,
however, the H1B employer may file to extend the H1B status for that
employee beyond the 6th year. These H1B extensions are issued in one-year
increments. This would not be impacted by premium processing, generally,
since it is measured from filing time, not the date of approval. If the
I-140 petition has possible problems, a person in this situation may be
disadvantaged by using premium processing for the I-140 petition. The H1B
extension would not be possible under this rule if the I-140 petition were
to be denied, unless the denial was appealed. Thus, using premium processing
and expediting a denial would not make one eligible for a three year
extension, and it would make the one-year extension more difficult.Three-Year H1B Extensions
A second manner in which to obtain H1B
extensions beyond the 6-year limit grants the extensions in
three-year increments. In order to be eligible for the three-year extension,
the H1B worker must be the beneficiary of an approved I-140 petition and the
case must be subject to retrogression (nonavailability of visa numbers). In
this situation, the employer may request an extension of the H1B status
beyond the 6th year, in three-year increments. In this situation,
I-140 premium processing would potentially provide an advantage to the
long-time H1B worker, as well as to the H1B employer. By gaining the I-140
approval, one is able to obtain the H1B extension for three years. This is
more advantageous than one-year H1B extensions in terms of expense and
effort. It also avoids other inconveniences associated with the one-year H1B
extensions, including repeated one-year driver's license renewals required in some
states to match one's length of status. One-Year Filing Rule Does Not Apply if I-140
Petition is Approved
There is some misconception on this issue. Some people confuse the rules
and incorrectly surmise that the three-year H1B extension rule requires that
the LC was filed at least one year prior. In fact, the rule that allows for
a three-year H1B extension, based on an I-140 petition approval and the
retrogression of dates, does not have a 365-day requirement. It is
sufficient for one to have the I-140 approved and the priority date
retrogressed. Thus, by using the PERM labor certification process (or a
labor-exempt category or labor substitution) and I-140 premium processing,
an individual potentially could be eligible for a three-year extension of
the H1B in less than 365 days time. This could be very helpful in many
situations, including those where an older green card case is denied and a
new green card case can be filed within time to permit an extension of the
H1B. Conclusion
Premium processing can be a valuable, strategic tool in connection with
three-year H1B extensions. There will be many cases in which the advantages
outweigh the cost. Once the option to have one's I-140 premium processed becomes
available, this filing should be carefully considered with an experienced
and qualified immigration attorney.

This article discussed some of the pros and
cons of I-140 premium processing as it relates to H1B extensions.
The article also addresses the I-140 premium processing as it relates to green cards. Once again, as of this writing, I-140 premium processing is NOT yet available. It is anticipated in the near future, and will be announced
once it becomes a reality.

Summary of Premium Processing Procedures

Premium processing is a procedure by which the U.S. Citizenship and
Immigration Services (USCIS) will review a particular application / petition
within 15 calendar days of receipt. The fee for this expedited service is
$1,000. Once it goes into effect for I-140 petitions, all EB1, EB2, and EB3
filings will be eligible, with the exception of National Interest Waiver
cases. Analysis : Pros and Cons of Premium ProcessingAC21 Portability
Obtaining approval of an I-140 petition in an expedited manner can be
beneficial to those who want to take advantage of AC21 green card
portability. AC21 portability allows for the approval of an employment-based
green card case based upon a job offer from an employer other than the
employer that filed the labor certification and/or I-140. The new job must
be in the same or similar job category. In order to safely use AC21 for this
purpose, the labor certification (where required) and I-140 must be
approved, and the I-485 must be pending at least 180 days. (While we are
aware that AC21 portability still applies even if the I-140 is approved
after the job change, since it must be approved in order for the green card
case to be approved, we think it is best not to change jobs until the
approval is issued.) Thus, the ability to expedite the I-140 decision can
mean that the eligibility for AC21 portability will arise earlier, and that
the change of employers will be safer. Premium processing can also offer
some benefits unrelated to AC21 with respect to employment flexibility.Approved I-140s and Job Mobility - Transfer of
the Earlier Priority DateThe priority date from an
approved, valid I-140 petition may be transferred to a new I-140 petition.
This is another situation in which premium processing would prove
advantageous. Since I-140 premium processing would allow for faster approval
of the I-140 petition, the priority date potentially then would be available
for transfer to a later-filed employment-based green card case, at the I-140
stage. This later-filed I-140 petition could be with the same employer (for
a different job) or with a new employer in a new position.Transfer of the Earlier Priority Date: EB3 to New EB2The ability to transfer
priority dates from an earlier, approved, I-140 to a later-filed I-140 could
provide an alternative for job mobility, both within the current employer's
organization or with a new employer. This would be helpful for those who
want to make a change but are not eligible to file the I-485 application
because of retrogression. It also could help people who are eligible to
change from an EB3 classification to EB2. One would be eligible to request a
transfer of the priority date from the earlier-filed EB3 petition to a new
EB2 petition once the I-140 is approved. The new EB2 petition would need to
be based upon a new LC for a position requiring the EB2 level of education
and/or experience. (Over time, many people with EB3 cases have become
eligible for EB2 cases due to increased experience and/or education, and
promotions.)
This strategy potentially could shave off a few years in the queue for
available immigrant visa numbers. This may be particularly appealing to
those who had EB3 labor certifications filed on their behalf long ago and
have had their cases pending while they have gained advanced degrees,
acquired several more years of experience, and/or are offered jobs at higher
levels. Keep in mind, though, that this involves filing a whole new LC under
the PERM system for a new job opportunity and that the employer must
actually require the additional degree and/or experience for all persons
holding that job classification in order for the new case to be filed as
EB2.I-140 Premium Processing and the Possible End of
Concurrent FilingIndications are that, in
the near future, the USCIS will discontinue the combined processing of I-140
petitions and I-485 applications for adjustment of status. This process of
combined filing is referred to as “concurrent filing.” Those affected by
retrogression have been unable to take advantage of the concurrent filing of
an I-485 with the I-140 for quite some time. The possible end of concurrent
filing will affect all categories of workers, from all countries, and will
be a return to the system that previously was in place. This means that the
I-140 petition will have to be approved before the I-485 can be filed. The
filing of the I-485 or adjustment application will still require that an
immigrant visa number be available in the particular category. So, the
approval of the I-140 petition alone will not necessarily mean that the
I-485 can be filed. However, there would be instances where the ability to
obtain an I-140 approval would be extremely helpful, and would allow an
I-485 could be filed at a point when the visa numbers were available, since
the cut off dates can move backwards as well as forwards. We at the Murthy
Law Firm will keep our readers informed if and when concurrent filing ends.
Indications are that the end of concurrent filing will coincide with the
start of I-140 premium processing.
The possible end of concurrent filing will mean that applicants for
permanent residence cannot submit their I-485 applications for adjustment of
status until their respective priority dates are current and their I-140s
have been approved. Thus, one with a current or soon-to-be available
priority date, premium processing of the I-140 would expedite the I-485
filing eligibility. I-140 and Consular Processing
Another possible option with I-140 premium processing is to select consular
processing. For persons with priority dates that are current or close to
current, this may be worth considering. If consular processing is selected
as an alternative to the I-485 filing, the case potentially could be
completed faster than an I-485. The visa number would need to be available
for the issuance of the immigrant visa at the consulate abroad. Some people
will try to use consular processing in a race to get their cases approved
during a time when visa numbers are available. This strategy was often used
in the past. It was more advantageous before AC21, however. Since AC21,
there is possible job mobility after the I-485 is filed. On the other hand,
if consular processing is selected, and the visa numbers become unavailable,
the case is not portable to a new employer if the person never filed the
I-485. Cons of I-140 Premium Processing
The implementation of premium processing may cause delays in the processing
of other I-140 petitions that are filed without the payment of the
additional $1000 premium fee. This happened when premium processing was
implemented for the I-129 nonimmigrant worker petitions in June 2001. A
February 2003 Audit Report found that the premium processing program caused
delays in processing routinely-filed cases.
With a large number of employers and/or beneficiaries paying an extra $1000
to have their I-140 petitions adjudicated in 15 days, those who do not pay a
premium may find that it takes longer than usual to have their I-140s
reviewed and adjudicated. Nevertheless, paying an extra $1000 for an I-140
is not necessary for those who are in the first few years of H1B status and
who intend to remain with their I-140 sponsors, at least for the immediate
future.What Premium Processing Does NOT DoEven though premium processing means getting an I-140 approval more
quickly, and thus, potentially, three-year extensions in H1B status, for
those affected by retrogression it does NOT guarantee that an applicant will
get a green card sooner. In order to file the I-485, one still must wait
until his or her priority date is current. At this time, premium processing
is NOT available and is not expected to become available for I-485
applications for adjustment of status to permanent resident. Conclusion
Premium processing of I-140 petitions can be a valuable, strategic tool in
many situations. There will be many cases in which the advantages will
outweigh the cost. We do hope that it will not increase regular I-140
processing times, disadvantaging those who cannot afford it or those who
chose not to use this service.

This article originally appeared in MurthyBulletin on www.murthy.com. Reprinted with permission.

About The Author

Sheela Murthy is the founder of the Law Office of Sheela Murthy, P.C. which consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Office of Sheela Murthy, P.C. handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.